Does Religion Determine a Tribal Woman’s Right to Inherit? Rethinking Section 2(2) of the Hindu Succession Act

*Nupoor Atram

Introduction

The Hindu Succession Act (Amendment), 2005 (“Act”) brought a major change in the inheritance rights. This amendment eradicated the system where only sons were considered as the heirs of the ancestral property. This amendment gave daughters coparcenary rights by birth, placing them on an equal footing with sons in matters of inheritance. This amendment simply recognised the idea that inheritance should not be based on the gender of a person.

However, not all women could benefit from the amendment as Section 2(2) of the Hindu Succession Act excludes members of Scheduled Tribes from the Act unless a notification is issued by the central government to them. Yet, even after seven decades the government has not issued any such general notification. Consequently, many tribal women still do not enjoy the same statutory inheritance rights that are available to other women under the Hindu law.

This raises an important question. Should a tribal woman’s right to inherit depend on the customs followed by her or her community? Or should it depend on whether her community follows tradition similar to Hindu customs?

The aim of Section 2(2) was to protect the unique customs and traditions of the tribal community as the government did not intend to interfere with the personal laws of the tribal people. However, in the process of protecting personal law autonomy, many tribal women have been left without equal inheritance rights, and in some communities, customary succession rules do not provide comparable protection for women’s inheritance claims.

Section 2(2): Protecting Tribal Identity or Denying Equal Rights?

Section 2 of the Act lays down who the Act applies to, but Section 2(2) creates an exception for Scheduled Tribes (ST), as recognised under Article 366(25) read with Article 342 of the Constitution, unless the Central Government extends the Act to them through a notification. This exception was created to protect tribal customs and personal laws, which the Constitution also seeks to preserve through Articles 25 and 29, along with the Fifth and Sixth Schedules.

The issue is that the exclusion has continued for decades without any review. Despite the power given to the Central Government to extend its provision to the ST, this power has never been used. At the same time, no separate law has been introduced to ensure that tribal women receive equal protection in matters of inheritance. Something which started as a way to preserve the tribal customs turned into a legal gap that leaves several tribal women without adequate safeguards.

This does not mean that every tribal custom is discriminatory, as they differ from one tribe to another, and many continue to play an important role in preserving tribal identity. But where customary practices deny women equal inheritance rights, the absence of a statutory remedy becomes a serious concern.

When Custom Decides Who Inherits

Inheritance rules differ from one community to another, but in many communities the property has been passed through male line. Practices such as Taben Jom, Ghar Di Jamai and Ghar Jamai are followed by some tribal communities where women may receive only limited rights of use and not the full ownership. These practices take place only in cases where either there is no male heir or the male heir is unable to do so.

These arrangements are generally limited and subject to conditions. Under such arrangement the property is managed by the son-in- law and not the daughter herself. These customs may offer some protection, but they do not give women equal ownership over the property. At the same time applying Hindu law to tribal communities may interfere with their customs and affect their cultural identity.

However, protecting the culture should not mean accepting practices that put women at disadvantage. Customs are never static and should change along with society. Many practices that were once widely accepted are no longer followed because they no longer reflect the values of equality and fairness.

Preserving one’s culture and protecting women’s right of equality can co-exist. The issue is whether these customs that deny women equal inheritance should continue to receive legal protection simply because they have existed for generations.

Should Religion Decide a Woman’s Right to Inherit?

Section 2(2) also gave rise to another legal issue. As there was no automatic applicability of the Act to the Scheduled Tribes, it became necessary to determine whether Hindu succession law could apply. This resulted in the judicial development of the “Hinduisation” test. Under this test, the courts would try to find out if a tribal group has adopted enough Hindu customs and practices to be able to apply Hindu Succession Act.

This test was first applied in the case of Budhu Majhi v. Dukhan Majhi case where it was to be decided if the adoption of Hindu customs by a particular community was sufficient to apply the Hindu Succession Act in spite of non-application of Section 2(2). The same approach was later followed in Labishwar Manjhi v. Pran Manjhi case where factors such as having Hindu names, performing funerals, shradh ritual and wearing sindoor were considered sufficient “Hinduisation”.

The test has been criticised because the application of inheritance rights came to depend on the adoption of Hindu customs rather than on a clear statutory framework. For a tribal woman, the right to inherit property should not depend on whether the tribe follows some of the rituals of Hindus.

The test also raises concerns under Articles 25 and 29 of the Constitution, which protect religious freedom and the right of communities to preserve their culture.

The Legal Gap Faced by Tribal Women

For many tribal women the major problem is the absence of a clear legal framework governing inheritance rights. Unlike codified personal laws, customary inheritance practices are often unwritten and they differ from one community to another and most of them do not give women an effective mechanism to challenge discriminatory practices.

This gives rise to constitutional concerns as Articles 14 and 15 guarantee equality and prohibits discrimination. The SC reaffirmed this principle in the case of C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, observing that women’s property rights must be interpreted in line with the constitutional guarantees of equality and dignity. Yet many tribal women continue to fall outside the protection of both the Hindu Succession Act and any alternative statutory framework that adequately safeguards their inheritance rights.

Judicial Position

Although the courts have recognised the difficulties faced by tribal women, they have consistently observed that a complete solution is not possible as long as Section 2(2) remains in force.

In Madhu Kishwar v. State of Bihar, the Supreme Court examined the validity of customs that barred tribal women from inheriting property. Although the Court did not strike down these customs, it recognised the rights of dependent tribal women to possess and cultivate land necessary for their livelihood. In his dissenting opinion, Justice K. Ramaswamy went a step further and observed that the principles of the Hindu Succession Act should also apply to tribal women.

Several years later, this issue again came up in Kamla Neti (Dead) through Legal Representatives v. Special Land Acquisition Officer where the appellant was denied an equal share in land acquisition compensation because under the tribal laws women cannot be recognised as legal heirs and Hindu law cannot be applied on them. The Supreme Court acknowledged that this created an unfair situation and urged the Central Government to reconsider the existing legal framework. However, no legislative action has been taken and Section 2(2) continues to remain unchanged.

In Ram Charan v. Sukhram, the Supreme Court adopted a more rights-protective approach by holding that the burden of proving a customary practice denying inheritance rights to women lies on the person relying on that custom, rather than on the woman claiming inheritance. This made it easier for women to challenge discriminatory customary practices before the courts. However, the decision was confined to the custom practices of the tribal communities before the court and did not lay down a principle that could be uniformly applied to all Scheduled Tribes, and therefore its broader impact remained limited.

Consequently, in the recent case of Nawang v. Bahadur, the Court held that equal inheritance rights under the Hindu Succession Act cannot be extended to Scheduled Tribes unless Parliament amends Section 2(2) or the Central Government issues a notification under the provision. In doing so, it departed from the earlier Hinduisation approach adopted in Budhu Majhi and Labishwar Manjhi, clarifying that the adoption of Hindu customs alone cannot override the statutory exclusion under Section 2(2).

These decisions collectively demonstrate that the courts are cognisant of the difficulties faced by the tribal women and have recognised that the present legal position can lead to unequal outcomes. However, they have also said that this change cannot be brought by judicial interpretation alone and for a lasting change legislative intervention by Parliament is necessary.

Need for reform

The issue concerning Section 2(2) is often presented as a choice between the protection of tribal customs and ensuring equal inheritance rights to tribal women. These goals need not necessarily be in conflict with each other.

Every community has the right to protect their customs including the tribal community. Section 2(2) was enacted to preserve this diversity. However, its continued operation leaves many tribal women without protection under inheritance laws. This raises an important question: can these customs be preserved while also ensuring that tribal women receive equal and fair inheritance rights?

One way forward could be to enact a separate law on inheritance for scheduled tribes that sets out minimum constitutional safeguards while allowing tribal community to retain their customs.

A National Tribal Inheritance Commission should be established to examine tribal inheritance practices in consultation with tribal communities especially women and recommend community specific reforms or notification wherever necessary.

Further, a mandatory periodic review of Section 2(2) can be provided by the Parliament so that the continued exclusion of ST is regularly reassessed instead of remaining unchanged indefinitely.

Conclusion

Section 2(2) was introduced to protect the unique customs and cultural identity of ST. However, its continued operation has resulted in the exclusion of many tribal women from equal inheritance rights.

The constitution seeks to protect both equality and the cultural identity of tribal communities. The major challenge is to ensure that one is not protected at the cost of other. Although the courts have recognised the problems faced by tribal women, they have also made it clear that this issue cannot be resolved by the judiciary alone. As long as Section 2(2) remains unchanged, many tribal women will continue to be denied equal inheritance rights. It is now for the Parliament to reconsider women’s rights. Any reform should be introduced only after consulting tribal communities, especially women, so that their customs are respected while ensuring equal inheritance rights.

*The Author is a third- year law student pursuing B.A. LL.B. (Hons.) at Maharashtra National Law University, Mumbai.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.